Trial of Deacon Brodie

by Unknown

Thus, then, gentlemen, the case would stand were it to be decided on the direct testimony of the witnesses on both sides weighed against each other. The circumstantiate proof, however, still remains to be considered, and I am free to confess that if it shall appear to you that these circumstances afford a chain of real evidence, either sufficiently independent of the direct depositions of Brown and Ainslie to prove the prisoner’s guilt, or so fully to confirm their testimony as to remove the cloud of suspicion that hangs upon it, as to convince you that they must be speaking the truth and the witnesses to the alibi the reverse, your verdict ought to be against the prisoner.

But I humbly maintain that not any of those circumstances nor all of them put together are sufficient to entitle the evidence of such witnesses to credit, when the life of a man is at stake, even if the proof of alibi were out of the question, and far less in the face of that proof of alibi, which, if the witnesses have not deliberately perjured themselves, excludes even the possibility of the prisoner’s guilt. For I hope to show that there is not one of those circumstances, suspicious as they may appear, that cannot rationally be accounted for without supposing the guilt of the prisoner, Mr. Brodie; nay, that some of them are totally inconsistent with the supposition of his having been guilty of this offence, whatever other errors his fatal connection with these miscreants may have led him into.

In considering the circumstantiate evidence, gentlemen, you are never to lose sight of the direct proof I had the honour just now of stating to you as to the alibi; and as each circumstance passes under your review, I entreat you to ask yourselves this question, whether it is so clear, so decisive, so totally irreconcilable with the possibility of the prisoner’s innocence as to make the suspicious testimony of those infamous witnesses outweigh the proof of alibi, founded on the depositions of persons liable to objections on no reasonable suspicion?

The first circumstance founded on is the prisoner’s connection with the perpetrators of this crime. I readily grant that it is clear from the evidence that Mr. Brodie was in habits of too great intimacy with these men. I acknowledge that he appears to have been too deeply engaged in courses of gambling and dissipation in their company and society. That his association with such characters was dishonourable to the reputation of my client, I do not deny.

But, gentlemen, this gambling connection is far from being any proof of his share of the guilt of the crime now charged against him and the other prisoner at the bar, though this circumstance, no doubt, gives possibility to a tale that, without it, would have been rejected at once as totally incredible. Had Mr. Brodie been in no way connected with Brown, Ainslie, and Smith, what could they have accused him in? When the hopes of life were held out to Brown and Ainslie, in order to procure a discovery of their confederates, however willing they might be to deceive the public prosecutor, they would have themselves seen that it was in vain to accuse a man as their associate who had never at any time been connected with them.

But though his having connected himself with them afforded a plausible colour to their charge, it does not follow that this connection affords either a proof or a presumption of Mr. Brodie’s guilt; it is to be considered rather as the cause of his being accused. Many other persons, otherwise very respectable, are known to have gamed in company with these very men, but would this have been sufficient to criminate them had Brown and Ainslie thought proper to give them also up as their confederates in this dark business? The folly of haunting, for any purpose whatever, the company of such men is great indeed, but to subject the party guilty to the consequence of every enormity of which such associates may accuse him, on their bare testimony alone, would be a punishment far beyond the offence, as such men would never fail to find some unhappy associate of better rank than themselves to substitute as a sacrifice to the public for crimes to which he had no accession.

The next circumstance founded on in corroboration of the evidence of Brown and Ainslie, is the alleged proof by the oath of Grahame Campbell that Mr. Brodie was present with the gang at the house of Smith on the night the Excise Office was broken into, and left it in their company. The veracity of this witness I mean not to dispute, but I maintain it to be impossible that, if she be speaking the truth, the facts she swears to could happen upon that night, or if she did, it must be fatal to the whole evidence given by Brown and Ainslie, as it contradicts them in the most essential particulars.

This witness indeed swears that one night—for she fixes no precise time—soon before Mr. Brodie left this place, he, Brown, and Ainslie met at Smith’s house before six o’clock; that they all left it about six; that between nine and ten they all returned; that they supped there, and remained about two hours. And she remembers particularly that Brown and Ainslie sat down to supper, but that Mr. Brodie stood all the time they ate their meal. But Brown and Ainslie expressly swore that, after coming out of the Excise Office, they did not see Mr. Brodie again that night, and that Brown did not meet with him till the Friday, when he for the first time got an opportunity of abusing him for having left his post. She differs from them also as to Mr. Brodie’s dress, which she says was, when he came, an old-fashioned black coat, whereas Brown says it was his ordinary black coat, and that he wore a white surtout above it. Both these opposite stories cannot be true, and consequently the young woman has deponed to what happened on a different night, and her evidence does not corroborate that of Brown and Ainslie; or, if she swears to that night, she swears to facts totally inconsistent with the truth of part of their evidence at least, and thereby destroys the credibility of the rest of it.

The Lord Advocate has told you that this witness must be mistaken with regard to their supping, because she has also said that they had ate some fresh herrings or cold fowl before setting out. I cannot, for my part, see how their having taken this collation early in the evening can be any reason for their not supping betwixt nine and ten. And, at any rate, though she could have mistaken the smaller circumstance of their eating or not eating after their return, it is utterly incredible that she should have recollected their all being at Smith’s together between nine and ten, and continuing together for two hours if, as Brown and Ainslie depone, they and Mr. Brodie never met that night after the time the two former went into the Excise Office.

The next circumstance founded on by the prosecutor is the departure of Mr. Brodie from this country, which is not only held out as a flight from justice, but as a flight applicable to this particular offence.